The Koh Memo’s Impact on the Current US Position (A Reply, in part, to Ben Wittes)

[Editor’s Note: Just Security is holding a “mini forum” on the extraterritorial application of human rights treaties in light of the release of two State Department memos and the US appearance before the UN Human Rights Committee the week of March 10, 2014. This series includes posts from Jennifer DaskalDaphne EviatarRyan GoodmanJonathan HorowitzMarko Milanovic, and Beth Van Schaack, and Letters to the Editor from Manfred Nowak and Martin Scheinin.]

Agree with the Koh Memorandum or not, it appears to have already altered the position that the United States has taken toward its reporting obligations under the International Covenant on Civil and Political Rights (ICCPR). Indeed, if you are a reader who flatly opposes the Memo’s legal conclusions that the ICCPR imposes extraterritorial obligations, you would not be well-advised by anyone who tells you that the Memo has been “ignored” or doesn’t actually “represent the considered view of the Legal Adviser’s office.”

In this post, I explain some of the apparent influence of the Memo in the US submissions to the UN Human Rights Committee, the ICCPR’s treaty body. Because my analysis concerns the merits of the 2010 ICCPR Memo as well as its impact, I also address Ben Wittes’s post over at Lawfare on some of the procedural issues.

Indeed, let me begin with some remarks about Ben’s post (which has received excellent replies by Peter Margulies at Lawfare and Beth Van Schaack here at Just Security).

I strongly agree with Ben about the wrongfulness and inappropriateness of anyone’s leaking the memos especially as a means to influence US policy. On that point Ben and I are fully in accord.

Let’s then turn to the other issues.

Ben begins with a significant disclaimer: that he does not know this area of law very well and thus he will not delve into the merits of the interpretation of the Covenant. He writes with characteristic and admirable modesty: “I am not an expert on the ICCPR or the CAT, and I will leave the debate … over extraterritorial application of the treaties to those who know the issues better than I do.”

Ben’s claims and criticisms, however, depend on the merits of the substantive positions in the Memorandum. The core of his argument is that the Memorandum was wrong to unsettle what he later calls “long-standing,” “reasonable,” “tenable,” and “plausible” readings of the ICCPR. I am not sure how we can debate the reasonableness and plausibility of treaty interpretations if one does not get into the substance and indeed the specific content of this particular Memo.

Ben doesn’t even touch on the Memo’s explanation of why the issue was revisited – in light of subsequent state practice (an important basis of interpretation under the law of treaties that can compel a different understanding later in time), recent interpretations by significant authorities such as the International Court of Justice, and the fact that the US position appears to have never been thoroughly examined before (indeed, the Memo doesn’t have to contend as far as we know with any such preceding study by the Office of the Legal Adviser or within the government).

Ben’s statement about the “long-standing” nature of the US position also conflicts with what we learn from the content of the Memo itself. Indeed, the Memo shows the opposite – quite convincingly in my view and contrary to my own prior public position on this topic. That is, the Memo presents previously ignored research showing that the US delegation, headed by Eleanor Roosevelt, in negotiating the ICCPR did not oppose extraterritorial obligations under all circumstances. And, the Memo shows that the Senate and Executive Branch – including Senator Jesse Helms – appeared to be operating with the understanding that the ICCPR applies extraterritorially, at least with regard to the obligation to respect the rights guaranteed in the treaty (even if not with regard to the obligation to ensure such rights).

In sum, the longest standing position of the US government was the one that dated back to Mrs. Roosevelt and the treaty drafters.  And it would have been a dereliction of the duties of the Legal Adviser, in light of all this evidence that came to light, not to reconsider the contrary, casually adopted position and mistaken representations that the US government has made since 1995.

Perhaps Ben and I can meet in the middle: I actually share the opinion that the prior views of the US government and Legal Adviser Harper were reasonable and tenable — based on the record known to them at the time. But the 2010 Memo shows how many of us – myself included – were basing those views on a mistaken understanding, for example, of Mrs. Roosevelt’s position in drafting the treaty. And many of our views were held before the alignment of subsequent state practice and ICJ pronouncements would give us reason to reconsider.

Let’s turn to the current influence of the Memo. Ben states (my emphasis added): “I don’t believe these memos represent the considered view of the Legal Adviser’s office. I think they represent the views of Koh and a small group of people around him.”

On what basis? Ben quotes the following lines from Charlie Savage’s story in the New York Times:

The Times story cites an anonymous official “maintain[ing that] the memos were never cleared as the official State Department position, and [saying] agencies had ‘unanimously’ concluded the existing interpretation was sound.”

But those lines (from a singular anonymous source) do not say anything about the Office of the Legal Adviser, and we know from Savage that L’s client — the Bureau of Democracy, Human Rights, and Labor – also agreed with the position of the Memo. Ben refers to prior positions held inside “L” as a basis for his belief that the Memo does not reflect the considered views of the Office. That’s an odd move, since those views were formulated before the Memo was written. And the Memo is, if nothing else, a work of extraordinary legal analysis that should give any reasonable person cause to reconsider her views.

Finally, let’s consider the potential impact of the Memo on the US reports that were subsequently submitted to the UN Human Rights Committee. Far from being ignored, the 2010 Memo appears to have shaped the United States’ December 2011 state party report to the Committee (overlapping with the time when Koh was head of “L”) and the July 2013 Written Responses to Questions from the Committee (submitted after Koh had left).

First, as Beth Van Schaack has noted (here and here), the 2011 report adopts a different posture on the extraterritoriality issue compared to the prior US report submitted by the Bush administration. The prior report strongly reasserted a position against any extraterritorial application. The 2011 report in contrast expresses, in an unusually worded statement, the “United States is mindful” of the opposing interpretation of the Committee’s jurisdiction and expressly takes notice of three sources favoring the extraterritoriality view. It is almost code for “we are taking it under advisement.”

Second, the 2011 submission, as Beth has carefully documented as well, softens earlier US positions against the application of IHRL in armed conflict. Notably these passages may also be read to imply that the US recognizes the application of IHRL in international armed conflicts and in transnational NIACs occurring outside of a state’s own territory. As Beth wrote in her article published by the Naval War College: “[T]he submission suggests that it is the United States’ view that there may be aspects of a State’s conduct that are, in fact, governed by human rights law, even during situations of armed conflicts—all of which are taking place outside of United States’ territory at this time.”

Third, the media and blogosphere’s focus on the legal positions in the 2010 Memo should not obscure one thing: the United States 2011 and 2013 submissions to the UN Committee are replete with paragraph-after-paragraph reporting on US actions outside of US territory. Compare this to the past. In 2004, the Committee asked the United States to address problems related to persons detained in Afghanistan and other places “outside of the United States.” The US Response contained a flat rejection of the extraterritorial application of the ICCPR and added a statement that “this Committee request for information is outside the purview of the Committee.” Almost with a back of the hand, the US Response then referred the Committee “as a courtesy” to an Annex the US had submitted to a treaty body with responsibility for the Torture Convention. The 2013 Written Responses, in comparison, provide detailed answers to specific questions by the Committee with respect to US detention and transfer of people in Afghanistan, Guantanamo, and Iraq. Of course, the US is simply reporting on these actions as a matter of policy—not because the administration’s position is that it is legally bound to do so. The contrast with the last time the US reported to the Committee, however, is stark.

* * *

If some of the commentaries at Just Security – including letters to the editor from among the most esteemed experts in the field (Nowak and Scheinin) — is any measure, Koh’s 2010 Memo is widely regarded as not only correct on the general question of extraterritoriality, but actually quite carefully conservative in where it draws the line. It will be difficult for any future occupant of the Legal Adviser’s post, especially with expertise in human rights and treaty law, to come out in favor of the US position in 1995.

The fact that the 2010 Memo will place such pressure on that individual is not simply due to the signature at the bottom, but due to the obvious strength of the analysis preceding it. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.